Odido & another v Topmark Shelter Limited (Tribunal Case E405 of 2025) [2025] KEBPRT 404 (KLR) (12 September 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 404 (KLR)
Republic of Kenya
Tribunal Case E405 of 2025
Gakuhi Chege, Chair & J Osodo, Member
September 12, 2025
Between
Clarious Odido
1st Applicant
Collins Odede
2nd Applicant
and
Topmark Shelter Limited
Respondent
Ruling
A. Introduction And Parties’ Pleadings
1.The Applicants moved this Tribunal by way of a Notice of Motion dated 14th April 2025 seeking injunctive orders restraining the Respondent from interfering with their tenancy over the premises known as Kariobangi Light Industries. They contended that they have been consistent rent payers and that the Respondent unlawfully locked the premises and disconnected electricity on 24th August 2024.
2.The Applicants supported their case with an affidavit sworn by the 2nd Applicant, maintaining that they had paid rent of Kshs. 5,000/= monthly and that the Respondent’s actions amounted to harassment intended to force them out.
3.The Respondent opposed the application through a Replying Affidavit sworn on 9th June 2025, contending that the Applicants stopped paying rent in August 2024, thereby accruing arrears of Kshs. 55,000/= by August 2025. The Respondent denied the allegations of harassment or disconnection of electricity and argued that the Applicants had approached the Tribunal with unclean hands.
4.The Tribunal’s inspection report dated 11th June 2025 confirmed that no rent has been paid since June 2024 and that the premises remained locked and unused, corroborating the landlord’s position.
5.The Respondent’s submissions urged dismissal of the application on the ground that tenants in arrears cannot invoke equitable reliefs.
B. Issues For Determination
6.From the pleadings, affidavits, submissions, and inspection report, the following issues arise:c)Who is liable to pay costs?b)Whether the Applicants are entitled to equitable reliefs.a)Whether the Applicants are in rent arrears.
C. Legal Analysis And Determination
a) On Rent Arrears
7.Section 4(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 places a mandatory obligation on tenants to pay rent as and when it falls due. The inspection report confirmed that the Applicants last paid rent in June 2024, corroborating the Respondent’s account of arrears now standing at Kshs. 55,000/=. The Applicants provided no receipts or bank records to contradict this.
b) On Equitable Relief
8.The Applicants seek injunctive reliefs. It is a well-established maxim that he who comes to equity must come with clean hands.
9.In Samuel Kipkori Ngeno & Another v Local Authorities Pension Trust (Registered Trustees) & Another [2013] eKLR, the Court held:
10.The Court of Appeal in Gusii Mwalimu Investment Co. Ltd & 2 Others v Mwalimu Hotel Kisii Ltd [1996] eKLR stated:
11.Similarly, in Moses Njoroge & Another v Housing Finance Co. of Kenya Ltd & Others [2007] eKLR, the Court stated:
12.In Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, the Court of Appeal cautioned:‘The Court must prevent abuse of its process. It cannot allow a litigant to misuse its machinery to achieve unfair advantage or to perpetuate an illegality."
13.Applying these principles, the Applicants, being in arrears for eleven months, cannot demonstrate clean hands. They are attempting to use the Tribunal process and interim orders to avoid payment of lawful rent obligations. Their conduct constitutes an abuse of process.
14.In regard to costs, section 12(1)(k) of Cap 301, grants this Tribunal jurisdiction to make orders on costs. The tenants are liable to pay costs of the case to the Respondent who is the successful party.
D. Final Orders
15.For the reasons stated, the Tribunal finds as follows:a.The Applicants are in arrears of rent amounting to Kshs. 55,000/= as at August 2025.b.The Notice of Motion dated 14th April 2025 is dismissed with costs to the Respondent.c.The interim orders granted on 22nd April 2025 are hereby vacated.d.The Respondent is at liberty to break into the premises with the assistance of OCS, Kariobangi Police Station to recover the outstanding arrears through distress for rent or any other lawful means.e.The Applicants shall pay the costs of these proceedings.f.Leave to appeal is hereby granted to any dissatisfied party herein.
It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12TH DAY OF SEPTEMBER 2025HON. GAKUHI CHEGE(PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON. JOYCE AKINYI OSODO(PANEL MEMBER)IN THE PRESENCE OF: -2nd tenant/applicantBen Mwangi/director of respondentNo appearance for 1st tenant